4. Upgrades The Company will provide upgrades to the Software from time to time at its discretion (Upgrades).
5. Software Performance, Support and Fault fixing The Company will ensure that the Software will perform, in all material respects, to the Specification which is defined by the online Help Files. In the event that the Software does not perform in accordance with the Specification then the Customer will report such event and the Company will provide a support and repair service as described in the Spotler Support Charter v2.
6. Software Access Customer acknowledges that the Software will be hosted by a third party which is separate from the Company (Software Host) and that the Software is accessed via the internet which is out of the control of the Company. Whilst the Software Host uses industry best practice operations to reduce downtime, the Company does not guarantee that Customer or any third parties will be able to access the Web Address at any particular time. Customer acknowledges that the need for routine maintenance and error correction may result in down time and that the Company cannot control the timing or volume of attempts to access the Web Address.
Software Host The Company will ensure that at all times the Software Host holds all material and up-to-date accreditations, with regards to information security, to an appropriate standard. The Company agrees to require the Software Host to obtain such relevant accreditation within a reasonable time, if this is not the case, and should the Software Host fail to provide the required accreditations, the Company agrees to use an alternative Software Host which possesses the appropriate accreditation.
7. Services The Company will provide the Services using appropriately skilled and competent consultants, and Services will be performed and delivered in a professional and workmanlike manner.
8. Fees Customer agrees to pay the fees specified overleaf (Fees), together with VAT thereon at the rate prevailing from time to time. Customer must pay the Fees to the Company or the Collection Agent specified on the Customer Order Form by the payment method defined. All sums payable and to become payable by Customer under this Agreement shall be paid in full on the due dates for payment without any deduction, set-off or counterclaim, unless expressly permitted by this Agreement.
9. Default Interest and late payment fees If the Customer fails to pay Spotler Ltd any sum due pursuant to the Agreement, which has not been disputed or has otherwise not been properly received by the Customer, the Customer shall be liable to pay interest to Spotler Ltd on such sum from the due date for payment at the annual rate of 3% above the Bank of England’s base lending rate, accruing on a daily basis until payment is made.
10.1 Each party undertakes to comply with its obligations as set out in Schedule 4 to this Agreement.
10.2 Spotler has no responsibility or liability for the back up of Customer data and although Spotler makes regular backups in line with industry best practice, the Customer remains responsible for making its own backups, particularly but not limited to when the Customer adds a significant amount of data to the Services over a period of 24 hours.
10.3 The Company In the normal course of providing the service under this Agreement the Company will a) gather data on the association of the IP address and company name in the Customer data (where present). The Company has the right to use this data to deliver look up services to all Spotler Customers b)used anonomysed activity data in the provision of the Machine Learning to help facilitate the predictive click through rate.
11. Copyright Indemnity – the Company will indemnify the Customer in full and on demand for all costs, claims, demands, expenses (including professional advisers fees) and damages in relation to infringement of copyright as a consequence of the authorised use or possession of the Software in accordance in all respects with the Licence provided that (a) the Customer makes no statement prejudicial to the Company; (b) such infringement is not caused or contributed to by any act on behalf of the Customer other than the use of the Software in accordance with the Licence; (c) the Company is promptly notified in writing of the details of the claim; (d) the Customer gives the Company all reasonable assistance in connection therewith, and (e) the Company shall have sole conduct and control of its settlement or compromise. For the avoidance of doubt, the Company permits the Customer to take any such action it deems necessary to protect its own interest at the cost of the Company. To avoid potential infringement, even if not alleged, the Company may at its option and at no charge to the Customer obtain a licence, or modify, or substitute an equivalent of, or remove the infringing Software so that the functionality does not change. The foregoing states the entire liability of the Company with respect to infringement or alleged infringement of any third party proprietary rights by the Software. The Company acknowledges that any bespoke art created by the Customer when using the Software will be owned by the Customer and no intellectual property rights, or any other rights in respect of the bespoke art, will be passed to the Company.
12. Termination 12.1 If any of the following events occurs then Customer shall be deemed to have repudiated this Agreement and the Company shall be entitled to terminate it and/or the provision of the Services forthwith:(a) Customer fails to pay any Fee or other amount payable under this Agreement within fourteen (14) days from the due date for payment; (b) Customer breaches clause 2(c) above; and (c) the Customer breaches any other of its other obligations under this Agreement, and fails to remedy the same within fourteen (14) days after written notice from the Company requiring the same to be remedied.If any of the above events of default occurs then, instead of terminating this Agreement and the Services, the Company may at its option arrange for the Software to be rendered inoperable by the Customer and/or for the Services to be suspended until such time as the relevant event of default has been remedied to the satisfaction of the Company.
13. Effect of Termination If this Agreement and/or the provision of the Services is terminated for any reason:
(i) the Customer shall immediately pay to the Company any arrears of Fees and other sums which have accrued due for payment under this Agreement as at the date of termination; and
(ii) Customer shall immediately cease its use of the Software and related Services; and
(iii) Customer shall, at the Company’s sole option, return or destroy (to the extent technically practicable) all of the Company’s Confidential Information and all copies of the Software in Customer’s possession, custody or control; and, if the Company opts for anything to be destroyed (to the extent technically practicable), Customer shall deliver to the Company the written certificate of a duly authorised officer of Customer confirming that it has done so.
In the event of Termination due to breach of clause 2(c) or the natural expiry of the contract, the Customer may request within 48 hours of Termination, that the Company provide a copy of all email addresses, unsubscribes and hard bounce data used by the Customer on the Software. The Company will provide this data once the Customer has paid a one off fee for its provision of £500 plus VAT and settled all outstanding amounts under this Agreement. If no request under this clause is received within the 48 hour period or if the Customer has not settled all outstanding sums due within 7 days of Termination then this data will be destroyed.
Company shall destroy (to the extent technically practicable) all of the Customer’s Confidential Information; and shall deliver to the Customer a written certificate of a duly authorised officer of the Company confirming that it has done so.
14. Limited Warranty To the fullest extent allowed by law, the Company’s warranty provided under this Agreement is exclusive and in lieu of all other warranties, terms and conditions, express or implied either in fact or by operation of law, statutory or otherwise, including, but not limited to any warranties of quality, fitness for a particular purpose, accuracy of information generated, title and non-infringement, all of which are disclaimed. The Company does not warrant that the Software or Services will meet Customer’s requirements or that the operation of the Software or Services will be uninterrupted or error-free. These disclaimers constitute an essential part of this Agreement.
15. Limitation of Liability In no event (death or personal injury excepted) will the Company be liable to Customer for any indirect, incidental or consequential damages, or loss of profit, even if the Company has been advised of the possibility of such damages. The Company’s liability to Customer for any other loss or damage from any cause whatsoever, regardless of the form of the action, will be strictly limited to the Fees paid for the prior 12 months.
16. Confidential Information Customer and Company shall use the same care and discretion, but in no event less than reasonable care and discretion, to prevent disclosure, publication or dissemination of any information made available by the one party to the other from time to time or which either party specifies is confidential (Confidential Information) as it employs with similar information of its own; and shall not use, reproduce, distribute, disclose or otherwise disseminate the Confidential Information except as required by law and regulation.
17. Assignment This Agreement and the rights hereunder are personal to Customer and are not transferable or assignable by Customer without the prior written consent of the Company. Customer acknowledges that the Company may assign its rights to payment under this Agreement to a third party (Assignee). The Assignee shall not be liable for the performance of the Software, the Services or any of the Company’s obligations under this Agreement.
18. Governing Law This Agreement shall be governed by and construed in accordance with the laws of England and the parties hereby agree to submit to the exclusive jurisdiction of the English courts over any claim or matter arising under or in connection with this Agreement.
19. Entire Agreement This Agreement and all attached schedules and appendices constitute the entire agreement between the Company and the Customer regarding its subject matter and all prior agreements, both oral and written, between the parties on this subject matter are cancelled, replaced and superseded by this Agreement.